Sections and Acts continued 1.1

REGULATIONS OF GATHERINGS ACT, 205 OF 1993

1. REGULATIONS OF GATHERINGS ACT

The purpose of the Act is to regulate the holding of public gatherings and demonstrations at certain places and to provide for matters connected therewith
The Act defines the definition and scope of the following terminology:
  • Gatherings and demonstrations
  • Riot damage
  • Notice of gathering requirements
Impact on the firearm user No person is allowed to be in possession of a firearm at any gathering, marches, protest or demonstrations.  The ban is not aimed at the normal social, business or recreational activities of individuals (The Gun Owners Guide: 1977 p66)

Note: This section bans the possession of firearms when attending and participating in protest marches, gatherings and demonstrations.  Even if the firearm is licensed and a magistrate or other authority approved the gathering or protest action the ban still applies.  This does not apply to person who official capacity monitors or police the protest action.

DANGEROUS WEAPONS ACT, 1968

1. DANGEROUS WEAPONS ACT 71/1968

To provide for certain prohibitions and restrictions in respect of the possession, manufacture, sale or supply of certain objects; to provide for the imposition of prescribed sentences where dangerous weapons or firearms have been used in the commission of offences involving violence; to repeal sections 10 and 10bis of the General Law Amendment Act, 1949; and to provide for incidental matters.

(2) The Minister may from time to time by notice in the Gazette and subject to such terms, conditions, restrictions, directions or exemptions as may be specified in such notice or as may be provided for therein, prohibit any person or any person belonging to any class of persons specified in such notice, from being in possession at any time or during any period so specified and either generally or at or in any place or area so specified or at a specified gathering or at any gathering belonging to any class specified in such notice, of any object belonging to a class, type, kind or category of object which, in the opinion of the Minister, is a dangerous weapon and which is specified in such notice.

Note: This can even under the mentioned circumstances include a toy gun when used for; illegal purpose

2. CONSTITUTION OF SOUTH AFRICA, ACT 108 OF 1996 AND CHAPTER 2 OF BILL OF RIGHTS

2.1. Supremacy of the constitution
(2)  This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
2.2. Bill of Rights – Section 7
(1)  The Bill of Rights is the cornerstone of democracy in South Africa; it enshrines the rights of all people in our country and affirms the democratic values of human dignity equality and freedom.
(2)  The state must respect, protect, promote and fulfil the rights in the Bill of   Rights
2.3. Application of the Bill of Rights
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court-
In order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to extent legislation does not give effect to that right; and may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).
2.1. Section 36 – Limitations
The rights in the Bill of Rights are subject to the limitations contained or referred to in Section 36, or elsewhere in the Bill.

PRIVATE DEFENCE

1.1. DEFINITION OF A CRIME

Criminal law consists of all legal rules, which stipulate which human conduct is punishable by the State, and the form the punishment should take.  Conduct, which is punishable by the State, is known as crime.

Criminal law thus deals crimes and punishment.

Tip: A crime can be described as:  an unlawful human conduct, performed with a blameworthy state of mind by a criminally responsible person and which is punishable by the State.

1.2. Requirements of a crime
If one considers all the crimes in our law carefully, one will find that the basic requirements for all of them are similar.  The requirements are:

No Requirement Description
1 Legality Conduct constitutes an offence (a crime) only if the law states that it is an offence and is punishable by the State.  An act therefore constitutes an offence only if it is punishable by the State.  The requirement for a crime is known as the “requirement of legality” or the “principle of legality”
2 An Act It is a requirement of every crime that a human being has performed an act.  This does not necessarily mean that one can by guilty of a crime only if one has actually done something.  One can also be guilty of a crime of something, which the law requires one to do, was not done (e.g. non-submission of an income-tax return).  This “failure to act” is called “an omission”. For the purpose of our criminal law an omission is also regarded as an act.
3 Unlawfulness It is requirement of every crime that the conduct (act) must be unlawful.  Conduct will be unlawful if it contravenes a statutory provision or a common law rule or if it conflicts with the general public’s idea of what is right or wrong.
4 Fault It is a requirement of the vast majority of crimes that the unlawful conduct must have been accompanied by a blameworthy state of mind.  The “blameworthy state of mind” is called “Fault” or “Means Rea” and is a state of mind for which a person may be blamed.
1.3. Grounds of justification
The most important Grounds of justification recognized in our law are the following:
  • Private defense (or self-defense);
  • Necessity;
  • Impossibility;
  • Consent;
  • Right of chastisement;
  • Acting upon an order;
  • Official capacity;
1.3.1. Private Defense
Definition
Private defense is the justification on which a person can rely if he protects his own or other interests against an unlawful attack which has commenced or is imminent at the time of protecting the interests.  Private defense consists of two components namely;
(a)        The Attack
  • The attack against you must be lawful. You could not plead private defense if       you were resisting arrest.
  • The attack must be against a legal interest – life or property
  • The attack must have commenced or be imminent, have started or about to
(b)       The Defense
  • The defense must be directed against the attacker, not against a third party.
  • The defense must be necessary to prevent or defend against the attack.
  • The defense must be immediate
  • There must be no other way of avoiding the attack.
  • The means used to prevent the attack must be reasonable.
  • You may not use more force than necessary to overcome the attack.
  • To claim private defense in a court of law one must be able to present proof.

Note: Private defense is a ground of justification upon which a person can rely if he protects his own or another’s interests against an unlawful attack which has commenced or is imminent at the time he protects the interests.

Important:

A plea of justification due to self-defense rests on two (2) basic, but

critical principles that must be proven in a court of law:

  • There must be an attack, and

  • There must be a defensive action to ward off the attack

  • The burdens of proof that a person claiming to have acted in private defense, rests with such person.

The Attack/threatening attack:

  • There must have been some kind of an attack

  • There must be an unlawful attack by a human being

  • The attack must be directed at a legal interest

  • The attack must have commenced or be imminent

The defense:

  • Must be directed against the attacker

  • There must be a need to protect the interest in danger

  • The defensive action must be reasonable

  • The defense must be immediate you cannot defend your self-hours after the attack

Note: “Warning Shot” Judgement

Published with kind permission from: Magnum Magazine, May 2004 edition by Martin Hood: There was recently a furore in local media concerning the decision of the Supreme Court of Appeal of Coetzee vs. Fourie. The media, particularly the print media stated that because of this judgement, it was now necessary to fire warning shots before utilizing a firearm in self-defense by discharging it at somebody. On examining the judgement this is clearly not so and we have a fairly typical example of the media selecting parts of the judgement and misinterpreting them – possibly for their dramatic effect (aka “making the news”)

The fact as accepted by the court were briefly as follows:
Coetzee, late one night after returning from a dinner with a friend was in his darkened garage and in the process of removing items from his car. He looked down his driveway and saw Fourie approaching him quickly, swinging his arms. Because it was dark and he could not identify who was approaching him he called to Fourie, “Wie is jy, wat wil jy hê?” (“Who are you, wat do you want”) but Fourie continued walking towards him, when he was approximately three meters away from Coetzee, Coetzee discharged a shot from his hip at Fourie, which hit him. As a result of being shot Fourie instituted action for civil damages against Fourie.

It is important to bear in mind that this was not a criminal case of attempted murder but was a civil claim for damages and therefore the onus of proof that applied was whether on a “balance of probabilities” Coetzee had acted reasonably.

The Supreme Court of Appeal was asked to determine whether Coetzee’s actions were reasonable in the circumstances. The Court, after examining the evidence, commented as follows:

“It was accepted on behalf of the plaintiff [Fourie] that defendant [Coetzee] shot the plaintiff believing that his life was in danger. The truth is, however, that his life was not in danger and his belief was mistaken. That the defendant held that belief is no defence to the claim unless the belief was also held reasonably. What was required to be shown by the defendant in order to avoid liability was that a reasonable person in the circumstances in which the defendant

[Coetzee} found himself would have believed that his life was in danger and would have acted as the defendant has acted. The standard against which the defendant’s conduct is to be measured is an objective one”

This is merely a re-statement of our common law and is something that all firearms owners who possess firearms for self-defense should know and understand. Put simply, you cannot escape criminal and civil liability by merely stating that you believed that your life was in danger. That belief must be tested against an objective standard and, if your actions do not meet that standard you can be held civilly or criminally liable. The court went on and stated as follows: “If the defendant indeed felt threatened in my view the circumstances called for at least a warning to be given by the defendant that he felt under threat before he was justified in shooting. As correctly pointed out by Nepgen J [at the earlier Full Court appeal], a firearm is potentially lethal weapon, which should be discharged in the direction of a person only as a last resort. Into his case the defendant shot the plaintiff without giving any prior warning of his intention to do so. In my view, he had time and opportunity to do so.”

It is this paragraph that the media focussed on and have somehow interpreted as meaning that warning shots should always be fired. However, this interpretation is incorrect because the court stated: “The defendant shot the plaintiff without giving any prior warning of his intention to do so.” This, is my opinion, means that if you have the time and therefore the opportunity to give some form of warning it should be given in a manner such as, “Stop right there because I am armed and will defend myself” If we read further in the judgement the learned judges have made it quite clear once again that they do not expect warning shots to be discharged by stating as follows:

“When he asked why he had not fired a warning shot the defendant’s evidence was that he had not thought to do so. In my view, a reasonable person in the position of the defendant in danger – before firing a shot at the plaintiff.” This clearly states that
“Some warning” needs to be given. In my opinion, by clearly refraining from stating that the warning should be given in the form of a warning shot, the judges clearly did not intend that warning shots must be given.

I believe that this is supported by the fact that the learned judges indicated in their judgement that this judgement needs to be recorded in the Law Reports. This means that the decision did not create new law or even re-interpret existing law and change the law. Although the law has not changed, all responsible firearm owners should be aware of the legal requirements of private defense if they wish to avoid criminal or civil liability in the event that they use their firearm for self-defense, the fact that this was a claim for damages gives a clear indication to firearm owners that the American trend of large claims of damages is creeping into our law. It is advisable, bearing this in mind that you should always have substantial amounts of public liability insurance – particularly if you own a firearm for self-defense.

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